Thomopoulos v Faulks
[2006] VSC 262
•19 July 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5738 of 2004
| IRENE THOMOPOULOS | Plaintiff |
| v | |
| MATTHEW JOHN FAULKS | Defendant |
| EMMA FAULKS | Secondnamed Defendant |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 17-19 May 2006 | |
DATE OF JUDGMENT: | 19 July 2006 | |
CASE MAY BE CITED AS: | Thomopoulos v Faulks & Anor | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 262 | |
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Easements – Lost modern grant – Principles – Requirement for uninterrupted usage of land as of right for 20 years – Laneway between two residential properties in suburban Melbourne – Split between titles – Used from 1974 by registered proprietors of one property to gain access by car to rear garage – Whether usage interrupted by objections and litigation in 1982 – Whether sufficient usage after 1982 – Whether any usage after 1982 open and without force – Whether owner of servient tenement acquiesced – Claim unsuccessful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A A Nolan SC with Mr N P Jones | McKean & Park |
| For the Defendants | Mr P H Wallis | P.R. Rule |
HIS HONOUR:
The parties and the claim
The plaintiff is the registered proprietor of the residential property known as 203 Albert Street, Port Melbourne. She has lived there since 1971. She claims an easement of way under the doctrine of lost modern grant over a strip of land which runs between her property and the residential property next door at 201 Albert Street. The strip is approximately 19 metres long and approximately 2.4 metres wide. About one third of its length lies within the title boundaries of 203 Albert Street and about two thirds within those of 201 Albert Street. If unobstructed, it would be wide enough to permit the passage of a motor vehicle down to the gate and garage located at the rear of the plaintiff’s property. There is no other vehicular access into the property. Parking is very tight in the street. Property values in the vicinity have increased in recent years. The right claimed would be of significant value to the plaintiff.
The defendants are the occupants and registered proprietors of 201 Albert Street. They acquired the house in 2002. In 2004 they caused building works, including drainpipes, decking and a boundary fence, to be carried out on their side of the strip of land. Those works now block any motor vehicle from passing along the strip.
The plaintiff seeks a declaration that there is an easement in favour of her property permitting pedestrian and vehicular passage along the entire length of the strip. She also seeks consequential injunctions requiring the defendants to remove the built items in order to re-open the claimed right of way. The defendants deny that the claimed easement exists.
The legal principles
The relevant legal principles were not the subject of any significant dispute between the parties. Both parties were content to rely on the following exposition of the principles by Hedigan J in Sunshine Retail Investments Pty Ltd v Wulff & Ors[1]:
[1][1999] VSC 415 (28 October 1999) at [75]-[76].
“75.There is not much doubt about, nor indeed was there much dispute between the parties, about the general legal principles that must apply for an easement of way to arise pursuant to the doctrine of the lost modern grant. It is conceded by the developer that the doctrine of the lost modern grant applies in the State of Victoria to land registered under the Transfer of Land Act 1958. See Nelson v Hughes 1947 VLR 227. It was accepted that there must be established uninterrupted enjoyment of the right-of-way for in excess of 20 years ‘as of right’. The use or enjoyment of the right-of-way must be, as generations of law students were taught, ‘nec vi, nec clam, nec precario’, that is without force, without secrecy and without permission. See Megarry and Wade Law of Real Property, 5th ed. at 870, citing the authorities in support of that precept. However, it is just as much part of the necessary state of satisfaction of the Court that acquiescence by the servient owner in the use of the land must be established, that is, the claimants must not only prove their user but raise circumstances which show that the servient owner acquiesced in that user. I have expressed that language neutrally because there is a dispute between the parties, that is between the claimant and the servient owner, as to who has the burden of proof of these matters.
76.The five elements of which the Court must be satisfied, either by direct evidence or by inference, do not seem to be in dispute in this case either, a matter which does not surprise as the principles have been pronounced in countless cases from Dalton v Henry Angus & Co (1881) 6 App Cas 740 at 786. The elements of which the Court must be satisfied are the following:
(1)the doing of an act by a person or persons upon the land of another;
(2)the absence of right to do that act in the person doing it;
(3)the knowledge of the person affected by it that the act is done;
(4)the power of the person affected by the act to prevent it, either by an act on his own part or by action in the courts;
(5)the abstinence by that person from interference of such a length of time which renders it reasonable for the Court to say that it shall not afterwards interfere to stop the act being done.
See Dalton v Angus at 774 and 786.”
The general issues
Of the five elements referred to by Hedigan J, the parties were in dispute mainly in relation to elements (1) and (3) – in particular, as to the nature and extent of the use made of the strip of land during the relevant years and as to whether and to what extent the registered proprietors from time to time of 201 Albert Street had knowledge (actual or constructive) of any such use. There were conflicts in the evidence on those issues. The accuracy of the evidence of every one of the ten witnesses called was challenged. But before dealing with the challenged evidence it is as well to set out some further facts that, at least in the end, were not in dispute.
Common ground
The plaintiff, Irene Thomopoulos, and her late husband Petros Thomopoulos (usually known as and hereafter called Peter Thomopoulos) acquired and moved into 203 Albert Street in 1971. It appears that the property was acquired pursuant to a terms contract of sale. In any event, a caveat was lodged in February 1971 and Mr and Mrs Thomopoulos became joint registered proprietors in 1974. The plaintiff accepts that, relevantly, time did not begin to run until she and her husband became registered proprietors of the land in 1974.
Mr and Mrs Thomopoulos had two children – a daughter Marianna born in 1970 and a son John born in August 1972.
During the 1970s and ‘80s and up until 1996, Peter Thomopoulos conducted a business selling sheepskins and sheepskin products from market stalls. He operated mainly at the Queen Victoria Market. When that market was closed he would sometimes operate at the South Melbourne Market.
Peter Thomopoulos kept stock for his business in his back yard at home, partly in a shed and partly in the garage already mentioned. He would personally transport stock between his home and the markets. At least in the period up to 1982 he would frequently drive his vehicle along the strip of land in question (which I will hereafter call “the laneway”) in order to load and unload stock and to park in the garage overnight. Up until mid 1982 there was an ungated opening in the boundary fence of 203 Albert Street through which Mr Thomopoulos would drive in order to reach the garage. He would also drive the car in and out of the laneway for general family purposes. 201 Albert Street was occupied by a Mrs Congues. There was a garage at the rear of that property also. It too was accessible from the laneway.
The Thomopouloses also used the laneway on foot to enter and leave their property. There was an alternative footpath on the opposite side of their property next to 205 Albert Street.
In early 1982 the house at 201 Albert Street was bought by Mr Danny Jobe and his wife Billie-Lee Jobe. They became the registered proprietors in March 1982 and moved in at that time.
After the arrival of the Jobes the Thomopouloses continued at first to use the laneway as they were accustomed to do. But by about the middle of 1982 Mr Jobe had made it known to the Thomopouloses that he was unhappy with the existing arrangements. First, he prevailed on the Thomopouloses to erect gates across the opening to the rear yard of 203 Albert Street. Later, he demanded that the car no longer be driven along the laneway. This was not agreed to. Thereafter the Jobes consulted solicitors and caused a fencing notice to be served on the Thomopouloses. No agreement as to the fencing notice having been reached, a proceeding relating to the notice was issued by the Jobes as complainants and was listed to be heard in the Magistrates’ Court on 14 December 1982. The parties attended Court on that day but the matter did not go to hearing. A settlement of sorts was entered into at the Court. It was recorded in a letter to the Thomopouloses from their own solicitor, Mr Rose, dated 14 December 1982. The letter read:
“Mr. P. & Mrs. I. Thomopoulos,
203 Albert Street,
PORT MELBOURNE. 3207
Dear Mr. & Mrs. Thomopoulos,
Re: Dispute over common driveway
I confirm that at the Magistrates’ Court at Melbourne on the 14th day of December, 1982 the following terms of settlement were agreed on by yourselves and the other parties:-
1.That the Hearing of this action be adjourned Sine Die with each party bearing their own costs to date;
2.That the Complainants agree to allow the Defendants to erect a garage in the laneway between the parties adjoining properties in a position prior and up to the first window of the Complainants house in the said laneway;
3.That the erection of the said garage be paid for by the Defendants;
4.That at the rear of the said garage a door be placed on the Complainants side of the property line so as to enable the Complainants to have access to the Street through the garage;
5.That a fence be erected of the type and height as set out in the Notice to Fence from the rear of the said garage along the property line to the end of the laneway;
6.That each party pay half the cost of the erection of the said fence;
7.That the Complainants Title be altered to show a registered easement, giving the Defendants the right to park exclusively and to be for their exclusive use subject to the Complainants right of way;
8.That the aforesaid terms are conditional upon the approval of the Complainants mortgagee bank;
9.That the alteration of the Complainants Title show the said easement be conducted by the Complainants Solicitors, Messrs. J.W. McClusky & Co., and that all necessary costs and disbursements in the alteration of the said Title be borne by the Defendants according to Scale;
10.That the aforesaid Terms are conditional upon the granting of a permit, or approval by the Port of Melbourne City Council for the erection of the said garage and if necessary the fence.
I have advised the other party’s solicitors of the Terms of Settlement herein and have requested that they commence work in this matter in the performance of the Terms of Settlement.
I shall keep you informed of all further developments.”
Yours faithfully
ANTHONY C. ROSE.”
On 22 December 1982 the Jobes’ solicitors wrote to Mr Rose as follows:
“Anthony C. Rose Esq.,
Solicitor,
122 Bridport Street,
ALBERT PARK 3206.
Dear Sir,
Re: Jobe v Thomopoulos
Re: Fencing Dispute
We refer to previous correspondence herein and now enclose a copy of the original fencing quotation.
We have requested our clients to obtain a fresh quotation regarding an erection of a fence to the first window of our clients’ property.
We confirm your clients are also obtaining a quote for the fence.
As previously advised we do not believe your clients will be able to obtain a permit for a garage however our clients would have no objection to the fence being built to the proposed point by the first window and allowing your clients to drive their car off the street and park it up to that point. No permit would then need be obtained. We would be pleased if you would obtain instructions from your clients in this regard as soon as practicable as our clients are anxious to have the fence constructed so as to obtain the privacy required by them.
Yours faithfully,
J.W. McCLUSKY & COMPANY.”
Nothing further was done to implement the so-called terms of settlement. No fence was built at this time. However, there is a real dispute as to whether the laneway was ever again used for vehicular traffic to any significant extent (or at all).
The Jobes carried out renovations to their house at 201 Albert Street in 1984. They demolished the old garage at the rear and constructed an extension of the house. They installed a hot water service on the side wall of their house facing the laneway near a point opposite the Thomopouloses’ rear gates. They continued to live at 201 Albert Street until May 2002. From time to time during their occupation of the property, various bulky items that would have obstructed vehicular traffic were left in the laneway by the Jobes. Throughout that period there was a set of wooden gates facing Albert Street at the front of the laneway.
Peter Thomopoulos’ car was a white Kingswood station wagon which was between 1.8 and 1.9 metres wide with the doors shut. The laneway being approximately 2.4 metres wide, there was clearance of only 50-60 centimetres in total, even ignoring the hot water service and any loose obstructions.
The Jobes sold to the defendants, Mr and Mrs Faulks, in 2002. The Faulks commenced occupancy in June of that year. No vehicle has been driven along the laneway since the Faulks arrived in June 2002. The Faulks carried out their own renovations to the house in 2003, and, as mentioned above, they erected drainpipes, decking and a fence in 2004.
The competing cases of the parties
The plaintiff (whose husband died in 2005 while this proceeding was pending) says that her family used the laneway for vehicular access openly and as of right at all relevant times between 1974 and 2002. She says that the events of 1982 did not constitute an interruption in her family’s use of the laneway because the proceedings in the Magistrates’ Court were resolved in a way that led to the resumption of the status quo. Even if there was an interruption in December 1982 – and time began again – she says that the necessary 20 years of use as of right occurred thereafter. Her family actually used the laneway for vehicular access between December 1982 and May 2002, admittedly to a lesser extent than previously, but as often as they chose. The Jobes must have been aware of this. Their evidence to the contrary should not be accepted. Although the laneway was not actually used for vehicular access after the Faulks arrived in June 2002, the plaintiff’s family’s right and desire to use it for such access continued to be asserted and maintained and the plaintiff says that this is sufficient.[2]
[2]In her own oral evidence, Mrs Irene Thomopoulos appeared to be maintaining that her family did actually use the laneway for vehicular access even after the arrival of the Faulks, but the evidence of her son and daughter and of the Faulks was to the contrary and in final submissions her counsel accepted that this had not occurred. See further below.
The defendants’ case is that any relevant use of the laneway by the Thomopouloses was interrupted in a fundamental way in 1982 and that no qualifying use occurred thereafter. The defendants point to the demands made by the Jobes in 1982, to the issuing of the fencing notice and to the fact and the outcome of the proceedings in the Magistrates’ Court. They say that, because of the attitude and conduct of the Jobes, the Thomopouloses did not use the laneway for vehicular access at all after December 1982. In any event, they say, if there was any such usage it must have been so limited as to have been undetected by the Jobes. If it occurred, it was, to the knowledge of the Thomopouloses, contentious. It was not done openly or as of right. It was not done with the acquiescence of the Jobes. From June 2002, at the latest, there was certainly no actual vehicular usage at all.
The witnesses and the evidence
Counsel for the plaintiff called four witnesses – the plaintiff herself, Michael Noel Bicknell, John Thomopoulos and Marianna Thomopoulos, in that order. Counsel for the defendants called six witnesses – Danny Michael Jobe, William Timothy Duncan, Bridie Jane Duncan, Billie-Lee Jobe and the defendants themselves (Emma Elizabeth Faulks and Matthew John Faulks), in that order. A direction was given for witnesses to remain out of court. The hearing occupied three days.
A court book had been prepared by the plaintiff and it was supplemented with further documents during the hearing. Afterwards, by agreement, the parties’ solicitors removed those documents on which no reliance had been placed by either side. There was agreement about the authenticity and the provenance of the remaining documents and the adjusted court book was received as a single exhibit. The documents include various photographs and diagrams of the properties in question as they stood at various times up until 2004.
Overall view
In order fully to explain my conclusions in this matter it will be necessary to summarise and comment on the evidence given by each individual witness. However it is appropriate to indicate at this stage that I do not accept the plaintiff’s case and that, in substance, I am persuaded by the defendants’ contentions.
Irene Thomopoulos
Irene Thomopoulos gave evidence through a Greek interpreter. She speaks only a little English and cannot read or write in English. Counsel and the interpreter had difficulties in communicating with her. She was inclined to stray from the questions asked.
In chief, Mrs Thomopoulos said that, on average, between 1972 and 1980 her husband’s car was parked in the garage on most nights of the week and “only rarely” in the street – only when the car was empty. She herself has never driven a car and has never been engaged in paid work outside the home.
In 1982, shortly after they moved in, the Jobes insisted that the Thomopouloses construct gates across the rear entrance to 203 Albert Street, for the sake of the Jobes’ privacy. Later they took the Thomopouloses to the Magistrates’ Court. Marianna went to Court with them but being only 12 years old she could not explain to her parents exactly what was going on. After “this story” (presumably, the Court proceedings) her husband rented a big box at the Victoria Market and left most of the stock there. But there was “always” something in the back of the car that needed to be brought in. There were a lot of big heavy plastic bags that had to be brought in by car. When asked by her counsel how often the driveway was used to move stock at that time she said: “Whenever the car had stuff in it, we would not leave it out, we would have to take it in”. Pressed by her counsel to say how often during the ten year period between 1982 and 1992 the car was actually parked in the garage, she said: “I can’t say, but I would say about two or three times a week”.
The plaintiff acknowledged that in 1982, after the court case, the Jobes started to leave “some rubbish” on the driveway – long pieces of timber and bricks. To enable the car to get through “we separated the timbers”. The timbers were put “on both sides” to open up a path for the car. (It was not explained how putting the timbers on both sides of the narrow laneway could make car access possible). She could not find the Jobes to ask them about this because they were not at home.
After Peter Thomopoulos’ car was written off in an accident (apparently in about 1993) he used their son John’s car and also their daughter Marianna’s car for the business. He used Marianna’s car more. He parked it in the garage “when he needed to unload the car from the factory”. Asked how often that was, she said: “Two, three times a week – sorry, a month, I should say, sorry”. It seems that she was speaking of a period between about 1993 and 1996 in this regard, although this was not clear. (By contrast, her son John, in his evidence, could not recall whether his father had ever parked in the garage after 1982. Her daughter, Marianna, said it happened very rarely and she could not clearly remember any particular occasion on which it happened.)
The plaintiff said that from 1996 onwards large bales of sheepskin rugs were stored in the sheds. (According to her son’s evidence this did not begin until about the year 2000.) She was asked how they were transported – whether she, her husband or her son did it. She said: “Not even my husband”. Rather, they were taken through to the backyard by the delivery people, who did so “using the driveway”. (The evidence of the plaintiff’s son was that he himself dragged them on foot along the laneway with occasional help from his father, but with no involvement by the delivery people.) She said that the laneway was also used for taking out her household rubbish bins. (Her son’s evidence was to the contrary.) She said that she herself would open the gates at the front (but see below at paragraph 32 as to her evidence given under cross-examination on this point). She said that the gates were only closed “when they needed to be closed and whenever we needed to use them, or used them for work, we would open them”.
Cross-examined, the plaintiff acknowledged that timber and bricks had been left in the laneway by the Jobes after the renovations of 1984. Later on, “maybe ‘95”, an old stove had been put there. The bricks were there for more than a year but they “weren’t bothering us” because they were “stuck up against a wall”. There were short planks of timber and long ones. The short ones were removed, but “two or three” long planks remained after the Jobes’ 1984 renovations right through until 2002. The stove was there “from perhaps 1995 to 2002”. Other things were left there, including a shovel. The Jobes did not take advantage of hard rubbish collections to get rid of their rubbish from the laneway.
The planks were five or six metres long and the bricks were stacked in two rows against the wall of the Jobes’ house. The plaintiff’s evidence as to how far the bricks and the timber protruded from the wall of the Jobes’ house, and as to whether they left enough space for a car to go past, was confused and difficult to follow. I think in the end she was saying that the bricks alone (being nearer to the wall than the timber) did not block access but that the bricks and timber combined did so. Some timber therefore needed to be moved, and was moved, by her husband whenever he drove down the laneway. Again, she maintained that some timber was moved over towards her house for this purpose, but I find this puzzling. She denied that her husband drove over the top of any timber.
The plaintiff accepted that what she had referred to as a stove might have been a washing machine. She said that her son, not her husband, had moved the “stove” out of the way into the street. She could not say how many times he had done this. She had never actually seen this herself.
In 1984 a hot water service was installed on the wall of the Jobes’ house opposite the Thomopouloses’ rear gates. Although the hot water service narrowed the laneway at that point, a car could still get through the gates and into the garage.
Mrs Thomopoulos acknowledged that the front gates were “very heavy” and that after 1984 the gate on the Jobes’ side was off its hinges and had been tied on with cord or wire and that it remained that way until after the Jobes left. Later in the cross-examination, the plaintiff made it clear that she herself had never opened the gate on the Jobes’ side (which was off its hinges), but only the gate on her own side. Her manner at this later point suggested that she thought it preposterous to say that she could or would have opened the gate on the Jobes’ side. She did not ask the Jobes to fix the gate at any time.
The plaintiff agreed that in about June 1982, after the rear gates had been constructed, Danny Jobe told her husband to stop driving down the driveway. There had been two confrontations. The first time Danny arrived with his father. The second time he came alone.
Mrs Thomopoulos was shown a memorandum of costs and disbursements from the Thomopouloses’ former solicitor, Mr Rose. It was headed “Dispute over Common Driveway” and related to legal work done between 20 July 1982 and 28 January 1983. The plaintiff said that her husband would have dealt with this and that she did not know about it. She agreed that she was never friendly with the Jobes. She did not speak to them during the 20 years they were her next door neighbours. She did not like them. She did not like them leaving “rubbish” in the laneway. Asked whether she thought they were doing this deliberately to stop cars being driven down the laneway, she said: “Initially I didn’t understand that; but later on I started to suspect it”.
The next exchange was as follows:
“Counsel: Right. And you tried to avoid them, didn’t you?
Witness: (Through interpreter): Yes.
Counsel: And you tried to avoid using the driveway when they were around, didn’t you?
Witness: (Through interpreter): They were never there, but I was careful always.
Counsel: For them not to see you, is that …?
Witness: (Through interpreter): I just avoided them.”
The plaintiff agreed that she never asked the Jobes to move their rubbish, but asserted again that she was given no opportunity to do so because they were never there.
Turning to the period beginning with the arrival of the Faulks, the plaintiff agreed that the Faulks had left potted plants in the laneway. It was put to her that they were there nearly all the time and she responded:
“They may have been there; but we did what we had to do”.
In the same vein, the plaintiff asserted that her family would move the Faulks’ rubbish bins from their regular position which was in the street outside the front gates. She said:
“We had to move them in order to get through, and they, too, weren’t at their house all the time.”
It will be noted that this evidence of Mrs Thomopoulos, suggesting that the laneway was used for vehicular access even after the arrival of the Faulks, is not supported by any other witness and conflicts with her own counsel’s concession in closing submissions that this did not happen.[3]
[3]See footnote 2 above.
Mrs Thomopoulos agreed that the Faulks sometimes parked their car in Albert Street outside the gates across the entrance to the laneway. She agreed that her own family had done this too since the Faulks had arrived. She did not know whether her family had done this while the Jobes were in residence, but flatly denied that the Jobes themselves had parked there. (In those respects her evidence differed from that of her son and her daughter and was in conflict with the evidence called by the defendants.)
Asked how often her husband drove down the laneway after 1982, the plaintiff said that he used it as much as he needed to in order to do his work. Pressed as to how often that was, she said:
“Three times a month, he would come with his car loaded up with sheepskins … Maybe more frequently sometimes … We never stopped doing it.”
The plaintiff agreed that the Jobes had put materials in the laneway and never moved them. But, she said, her family had moved them.
Asked about actually seeing her husband driving along the laneway after 1982, the plaintiff’s evidence was a little confusing, but she did claim that he would sometimes call out for her to assist with the rear gates and that she would then see him driving from the laneway into the garage. She claimed that he drove in forwards, not backwards. (This conflicts with evidence later given by her son and her daughter).
The plaintiff claimed that she always used the laneway to take her rubbish bins out. She denied using the path on the other side of her house, adjacent to 205 Albert Street. She said that the bins were too large. She agreed that since the narrowing of the laneway by the building works in 2004 she had used the other pathway for this purpose, but claimed that this had become possible only because smaller bins had become available.
She acknowledged that her husband and her son had used the pathway adjacent to 205 Albert Street to bring in some stock, but claimed that if the load was heavy or there were “lots of bags with moccasins” they could not pass on that side and had to take the car in.
Mrs Thomopoulos agreed that when she walked down the driveway she walked only on her side and used only the gate on her side. The gates were difficult to open. They opened towards the street, not inwards. They could only be opened from the inside, not from the street. At least, she herself could not open them from the street side.
I was not impressed with Mrs Thomopoulos’ evidence as she was giving it. Making due allowance for the fact that her evidence was being given through an interpreter, it struck me as vague, overstated and unconvincing. As indicated above, it turned out that significant parts of it were contradicted by evidence given by other witnesses, including her son and daughter as well as witnesses called by the defendants. I will return to this in due course.
Michael Bicknell
Mr Bicknell gave only brief evidence. He is a systems manager at Melbourne University. He has been a friend of the plaintiff’s son, John Thomopoulos, for many years. In his early years he lived with his mother in a flat in Albert Street, Port Melbourne. In 1980 he moved into 159 Albert Street. During his primary school days he visited the Thomopouloses’ house. He remembers seeing Mr Thomopoulos’ white Kingswood station wagon there. Sometimes it was on the street. Sometimes it was “down the driveway”. He said that this continued during his high school years between 1982 and 1989. When it was in the driveway it was parked “beyond the side of the house”.
He could not say exactly how many times it was parked down the driveway “over the 12 years that it was probably there” but it certainly happened often enough that, as soon as he had been asked about it, he “knew it happened”. Asked to give his last recollection of seeing it “there”, he answered, non-responsively, that the last time he saw the car would have been “the very early 90s, when the tram hit it, on the Light Rail line”. He gave some evidence about walking down the laneway himself. He said that it was open right through. There were no gates on the street, as he recalled. And the gates at the back were open.
In cross-examination, it emerged that Mr Bicknell had first been approached to give evidence only the day before the hearing. The plaintiff’s representatives had asked him whether he remembered the car and where it had been parked. Mr Bicknell confirmed under cross-examination that he could not identify the last time he saw the car parked down the laneway. He said it happened “often enough that I remember it happened”. He confirmed that he had no memory of gates at the front of the property, though he “walked past the house a lot”. For “most of the time” the car was in the street when he saw it. On the occasions when he walked down the laneway there was no car there. He could not remember the type or style of the gates at the rear. They were “always open”.
I do not think that the plaintiff was much assisted by Mr Bicknell’s evidence. He had been asked at short notice to cast his mind back some twenty years to the days of his childhood and early adulthood. His evidence was vague. He was not independent of the Thomopouloses. In my view, it is likely that any occasions on which he saw the car parked in the laneway had occurred during the period prior to December 1982. This interpretation is strongly supported by his recollection that at the time in question there were no gates at the front and the “laneway was open right through”. This was certainly not the case after December 1982. Further, he spoke of a period of 12 years during which the car was there, but in fact Mr Thomopoulos had the car for some 22 years.
John Thomopoulos
John Thomopoulos is an education consultant. He was born in 1972. He has lived at 203 Albert Street his entire life.
He said that, from the time when he was a very young boy, he remembered his father working at the Queen Victoria Market and ferrying stock in and out of the laneway by car. His father did this on numerous occasions, in the morning and in the afternoons. This went on until 1991 or 1992. His father worked at the market five days a week. He used a Holden Kingswood station wagon. He would reverse it into the laneway, up to where the garage was, load up and drive out forward. Prior to 1982, he would do this two or three times a week.
John Thomopoulos does not recall the dispute with the Jobes in 1982. However he does recall the rear gates being installed at that time. His father probably used the laneway a little less after the rear gates were installed. Asked how often his father used it after 1982 “on, say, a weekly basis”, he replied:
“[It was more like] two to three times a month. I can’t really say on, say, a weekly basis; just roughly, almost once a week.”
The way in which his father used it after 1982 was “a bit different, because there were some obstacles there”. Sometimes his father “would not drive all the way to the end to the garage. He would drive a quarter of the way or half the way up the driveway to load and unload”. Asked specifically by the plaintiff’s counsel whether, after 1982, his father did still, on occasions, drive all the way to the garage, he said:
“I can’t recall if he did that.”
Next, counsel asked him whether the car was parked in the garage prior to 1982. He answered “yes”. (Presumably he had a distinct recollection even of those early days). Then this:
“Counsel: And what about after 1982?
Witness: I can’t recall.”
Some subsequent questions which were asked of him in chief were framed on the basis that his evidence was that, after 1982 and right up to 1996, his father had driven down the laneway “about once a week”. I do not think that that was a fair representation of his evidence. Rather, as indicated above, his evidence was that after 1982 the frequency of use dropped from “two or three times a week” to “two to three times a month” (transcript 94), albeit he also said: “I can’t really say on a weekly basis, just roughly, almost once a week”. On my reading of this evidence, the witness was effectively acknowledging that the usage had been cut by about three quarters. Further, the nature of the use had changed substantially. Mr Thomopoulos could not recall a single instance of his father driving all the way down the laneway to the garage after 1982 nor a single instance of his father parking in the garage after 1982.
Mr Thomopoulos confirmed that his father’s car had been written off in an accident in 1992 or 1993. After that, he said, his father drove his car and his sister Marianna’s car into the laneway, until 1996. The witness himself did not use the laneway during this period. (It was not clear what opportunities the witness had to observe his father’s alleged use of the laneway at this time).
In 1996 Mr Thomopoulos took over his father’s business. Asked how often he himself used the laneway, he said: “Between 96, and it would have been 2001, 2002. I think, all up, I used it maybe ten times”. (It will be noted that this works out, on average, to less than twice per year.) Asked about the manner of his use on these occasions, he said that there were some obstacles in the driveway. He recalled either a stove or a washing machine or the like, and some timber. He said: “I just dragged them out of the way, got my car in, did what I had to do, drove my car out, and put the stuff back”. Even after moving the obstacles out of the way, he did not ever drive the car all the way in. Sometimes he went three-quarters of the way; sometimes half way. He did not go further because it was difficult to make the turn due to the car being close to the houses on both sides.
From about the year 2000, bales of sheepskins were delivered to the property for the purposes of the business. This continued until 2003 or 2004. These bales weighed about 75-90 kg and were about 1.2 metres high, 90 cm long and 90 cm wide. When the very first bale was delivered, John Thomopoulos dragged it (by himself) out to the back along the pathway adjacent to 205 Albert Street, but this proved very difficult due to the narrowness of the path. After that he dragged the bales along the laneway. He received deliveries of bales about once a quarter. The courier dropped them off at the front and John just dragged them through. Occasionally his father helped him, but no-one else did. (Contrary to Mrs Thomopoulos’ evidence there was no suggestion that the courier or other delivery personnel took the bales through or helped to do so).
Cross-examined, John Thomopoulos recalled that in addition to the obstacles he had mentioned (the stove or washing machine and the timber) there was a “stack of bricks”. He guessed that they were there for six or seven months. They were located in the middle of the laneway. They were strapped together in a pile one metre high by one metre long by 0.5 wide. It was not possible for the witness to move them or drive past them, but it was possible to drive up to them. This was in the mid to late ‘80s. At another time, after the Jobes’ renovation in 1984, some other building materials had been left stacked against the Jobes’ wall, but they had not stayed very long. On the other hand, the washing machine was there “for a long, long time”. At a guess, for three years. That was in the ‘90s. It was located several metres in from the front of the laneway. It blocked car access. There was timber there too. So each time he drove in he moved both the washing machine and the timer out onto the front footpath. He did this on every one of the abovementioned 10 or so occasions between 1996 and 2001 or 2002. (This suggests that the washing machine lasted beyond the ‘90s). The timber was there for roughly the same period as the washing machine. He would not concede that the timber had been there since 1984, although he was not sure about this. It was necessary to move the timber every time in order to drive down the laneway. The planks of timber were five metres long. On each occasion, he dragged them out to the footpath in front of his house and then dragged them back. “They were heavy, but it could be done”. This occurred in the early afternoon on Mondays or Wednesdays.
Mr Thomopoulos acknowledged that on each of these ten or so occasions he also needed to open both of the gates at the front. The gate that was off its hinges was more difficult to open than the other, but “you just picked it up off the ground and dragged it along the ground and left [it] up against the wall”. He denied that a shovel had been left against the gate to prop it up.
The witness agreed that his parents did not get along with the Jobes. His parents tried to avoid confrontation. He was not aware of any occasion on which the Jobes had seen him drive down the driveway. They could have been at work on those occasions. The last time he did it was in 2001 or 2002. He did not do it at all once the Faulks had moved in. He continued to operate the business until September 2005. He dragged bales down the laneway until then. He did so on the Thomopoulos’ own side. He could not remember pot plants on the Faulks’ side. He accepted that there were building materials left on the Faulks’ side during their renovations in 2003.
Asked about parking in the street across the entrance to the laneway, the witness said that his family did it and that others did too. For some years, parking had been tight in the street, so it was “first in best dressed”. This happened more in the evenings. He agreed that from about 5 pm til 8 am, nearly all the time, there was a car parked across the front. This could be his car or his father’s car or the Jobes’ car or somebody else’s car. (Compare the evidence of Mrs Thomopoulos on this point.) After the Faulks moved in, it could be their car or any other person’s car. There were occasions when he wanted to drive down the laneway but could not do so because there was a car parked across the entrance. On those occasions, he would “bite the bullet” and use the other entrance.
The witness agreed that his father had driven down the laneway less often “after the altercation with the Jobes” (in 1982). He confirmed that when his father did drive down, he reversed in and drove out forwards, just as he himself did later. Even when the path was clear, the witness himself did not ever drive right into the garage because “the turn was tough”.
The gates could be opened from either the inside or the outside. (His mother’s evidence was that they could not be opened from the outside). Opening the gates took half a minute. The laneway was narrow. It was not possible to open the driver’s door completely if the car was in the laneway, no matter how close the car was driven to the opposite edge of the laneway.
The witness said that the process of opening both sets of gates, moving the obstacles, reversing in part of the way, carrying the goods to the garage, driving out, replacing the obstacles, closing both gates and then parking in the street took half an hour. He was asked whether it was easier to do this than to simply park in the street. He said:
“If I had a lot of stock and was feeling tired, yes.”
I found that answer extraordinary, and rather difficult to accept.
Mr Thomopoulos acknowledged that in ferrying stock he used the pathway on the other side much more frequently than the laneway. He said that he stored a lot more at home than at the market. (According to Mrs Thomopoulos, her husband had done the opposite.)
The witness could not remember seeing his sister park in the laneway.
In the days before John became involved in the sheepskin business, his father would leave for the Market at 7 am or 7.30 am. He would return around 3 or 4 pm, depending on the day. On Saturdays, particularly after trading hours were extended in the mid ‘80s, he would return around 5 pm.
John Thomopoulos recalled his mother being in the laneway often and for various purposes, including cleaning up, painting the house and taking the dog through. But he did not recall her ever using the laneway to take out the wheelie bins for the weekly rubbish collection. She used the other pathway for that. (This conflicts with her own evidence).
The Jobes kept a Rottweiler dog. Mostly it was kept in their backyard. Sometimes the Thomopouloses would see it running free in the laneway, about once every two or three months.
It was put to Mr Thomopoulos that both the Jobes and the Faulks would say that they did not see him dragging any bales down the laneway or driving down the laneway. He responded that this might be because it only occurred during the early afternoons on weekdays.
He agreed that he had never thought to ask the Jobes to move the various things that, at times, were blocking him.
In re-examination, by reference to one of the exhibited photographs, he confirmed that at all relevant times there was a cross-over to the street from the entrance to the laneway.
In answer to questions from the Bench, Mr Thomopoulos said that when he was younger he sometimes accompanied his father to the market on weekends and during school holidays, but had no recollection of the Jobes seeing them at that time. Then this exchange:
“The Court:When you were, I think you said ten odd occasions, going into the driveway …?
Witness: Yes.
The Court:Did you have any concern in your mind that you might run into the Jobes while you were doing it?
Witness:I had some concern, but at the end of the day I thought ‘Well, bugger it. It is a driveway. I can use it. I am going to use it’.
The Court: What was the nature of your concern?
Witness: Because I knew that they didn’t want us to use it.”
No counsel wished to ask any questions arising out of that evidence. Later, during final submissions, I asked Mr Nolan SC, for the plaintiff, for his comments on this piece of evidence. He maintained that it was not inconsistent with the Thomopouloses having used the laneway openly, as of right and with the acquiescence of the Jobes. He said that it merely indicated that they were trying to keep the neighbourhood peace while continuing to exercise their rights. I have given that submission careful consideration but in the end, taking into account all of the evidence, I am not persuaded by it. I will return to this after dealing with the rest of the evidence.
Mr Thomopoulos’s demeanour as a witness did not, of itself, raise any concerns. In both manner of delivery and content, his evidence was more measured and more restrained than that given by his mother and, later, by his sister. Nevertheless, for reasons which I will develop in due course, I have formed the view that even his evidence is not a reliable guide to the extent and nature of the use of the laneway after 1982.
Marianna Thomopoulos
Marianna Thomopoulos is a training facilitator. She was born in 1970. She lived with her parents until 1998. Since then she has lived elsewhere, although still in Port Melbourne.
It emerged during her evidence that she had been closely involved in the dispute with the Faulks about the laneway (see, eg, transcript pp 143, 168) and, later, in looking for witnesses to support her mother’s case (transcript p 156). There is nothing wrong with that, especially given her father’s death in 2005, her mother’s limited capacity to provide relevant instructions and her mother’s limited grasp of English. However, I did get the impression that she was a particularly enthusiastic proponent of the family’s cause. From her demeanour, and having considered her evidence against all of the other evidence, I think that she had a distinct tendency to engage in overstatement.
Asked at the outset whether she recalled the laneway being used by her father, she said: “Absolutely, yes, yes”. She recalled him parking in the garage when she was beginning school as a five year old and “ever since then” she remembered him “driving up and down on a daily basis for his work”. He reversed in most times. He usually went all the way to the garage. From the age of “between five and eight” she began helping her father with carrying things for the business. This earned her pocket money. She did it on weekends on an ad hoc basis, right through her school and university days, into her early twenties.
She remembered a dispute between her parents and the Jobes that occurred when she was 12 years old. She was present at a discussion between her father and Mr Jobe. Mr Jobe wanted to put up a fence in the laneway “for privacy”. Her father protested, saying that he had been using the laneway as a driveway for many years. Mr Jobe had a bit of a temper and got a bit aggressive. She was afraid that he was going to attack her father. But her father refused to agree to a fence. Later, there was another discussion about privacy and Mr Thomopoulos agreed to erect gates at the rear entrance to his property. The gates were built.
The Thomopouloses thought that that would be the end of the matter, but it was not. The Jobes took them to the Magistrates’ Court, and the witness helped her parents with the interpretation of documents.
After the Magistrates’ Court proceedings, her father still maintained the use of the laneway for car access. Asked about the extent of the use after 1982 and up until 1996, she said:
“Regularly, very – almost on some – well, I would say very regularly. It was daily. He still maintained the use of it daily, wherever he needed to; but it was still on a regular basis”.
This evidence was internally inconsistent and unconvincing. It differed markedly from John Thomopoulos’ evidence (“two to three times a month”). It was contradicted by some of her own later evidence given under cross-examination. It was irreconcilable with much other evidence. I do not accept it.
Asked how the manner of her father’s use of the laneway after 1982 and up to 1996 compared with that of his prior use, she said that at times he had to work around materials from the Jobes’ renovations but he still used it “pretty much on a regular basis”. He now had to open the rear gates. Sometimes he would park only part of the way along the laneway, depending on whether the Jobes had left materials there, but he would drive through to the garage “wherever he could”. Again, this evidence is difficult to reconcile with her brother’s evidence and is contradicted by much other evidence and I do not accept it.
The evidence I have so far described was given on the first day of the hearing.
When the hearing resumed on the following day, Marianna Thomopoulos retreated a little in her evidence-in-chief concerning usage of the laneway after 1982. She said that whereas before 1982 the usage was regular, afterwards it “altered slightly” in that sometimes her father would have to park in the street and sometimes he would drive only part of the way up the laneway depending on whether there were obstructions. This was the situation until he lost his vehicle in an accident in about late 1993. Until that time he parked in the garage whenever there was an opportunity but “very rarely” because “at that point the Jobes were trying to obstruct, I guess, is probably the best way we took it as”. After the Jobes’ renovations there was “some sort of white good in the driveway” and some timber.
Following the accident in 1993, her father used her brother’s car for the business. At this time Marianna was working in the city. She herself acquired a car, a white Holden Astra, in 1995. Her father used that “after he ceased the business”.
Earlier, up until she finished university in 1992, her father would sometimes drive her to the market with him and would occasionally take her to other places, including high school and university, particularly on rainy days. She had been at high school between about 1982 and 1988. Asked where the car had been parked on the occasions when he drove her to high school, she said either on the street or in the front part of the driveway. (Notably, not in the garage). She was at university between 1989 and 1992. She recalled some instances of her father closing the gates at the front of the laneway just before taking her to university. (Again, she did not claim that the car had been in the garage on those occasions). The witness did not say what she was doing in 1993. From 1994 until 1998 she was living at her parents’ home and working in the city. Her father occasionally drove her to work. Sometimes the car had been parked in the street; sometimes in the laneway. (Again, not in the garage). After she got her car in 1995, she herself used the front part of the driveway but “never, ever drove it all the way to the back”. She would drive in for the purpose of clearing the car of her father’s stock before going out again. She did this five or six times a year between 1995 and 1998. She did not really have any trouble opening the front gates. She needed to drag them across the ground but they were “heavy enough to be stable”. She would not leave the car in the laneway for any more than 30 minutes or an hour. She never left it there overnight. She would put the stock in the shed. (Not, apparently, in the garage.)
The witness found it “hard to say” how long the Jobes’ obstacles were there but “not very long”. The timber was there “in the later part of the ‘90s”. There “wasn’t all that many” pieces of timber and it “wasn’t all that long”. (Her mother and her brother had both acknowledged that the pieces of timber were five metres long. Her brother had described them as “heavy”. He had acknowledged that they were there at least from 1996 until 2002. Other evidence indicates that they had been present since 1984.) Marianna Thomopoulos said that the “stove” was there “in the ‘90s”. She recalled no other obstacles.
On one occasion around 2000 she was at the house and saw her brother and her father with a big bale of sheepskins which they had apparently been dragging along the laneway.
After the Faulks bought 201 Albert Street in 2002, Marianna visited them. They were inside, painting. She told them she was glad the Jobes had finally sold. She asked them how they planned to use the laneway. She had called it a “driveway”. From their reaction, she realised that “these people may not have been completely OK with the fact that we were wanting to continue our usage”. They had said something like “We weren’t aware” or “You weren’t using it”.
Before the permits for the Faulks’ 2003 renovations were issued, Mr Faulks had told the Thomopouloses that he was not happy about them wanting to use the driveway. However during those renovations the laneway was extensively used for access to the site, including by “trucks”. Goods had been delivered by trucks “probably even reversing a little bit, probably towards the front of the driveway, I would say”. She “vaguely” recalled this. (The Faulks in their evidence denied that trucks or any other vehicles had used the laneway in the course of the renovations.)
When the Jobes were renovating in 1984, they too had had “a concrete truck, or something” using the laneway. It went most of the way down. (The Jobes denied this in their evidence.)
Cross-examined, Marianna was in difficulties maintaining that a “concrete truck” had gone down the narrow laneway during the Jobes’ renovations. She said:
“I remember it as being a truck, yes, or a wheelbarrow, yes.”
Marianna said that her father carried on his business in the same way from the 1970s onwards. He had additional storage at the Victoria Market in the 1980s and ‘90s, but business “was a bit better” and he still needed to use the laneway to ferry stock. Asked how often he did this, Marianna said:
“It was probably up to, I don’t [know], sometimes once a fortnight, sometimes twice a fortnight. It all depended. I couldn’t tell you exactly because I was at school; - - - ”.
This evidence was inconsistent with her evidence in chief that he used it “daily” and “on a regular basis” after 1982. It indicates that, at best, the laneway was used much less frequently for the purposes of the business after 1982. If the use of the laneway for vehicular access for the business had been uncontentious, it is surprising that it dropped so much after 1982. Business had not dropped. Indeed Marianna went on to say that “things were doing very well” at the time. (It is true that market storage had been obtained in about 1983 but Mrs Thomopoulos had indicated that this was because of the problem with the Jobes. On the other hand, John Thomopoulos had claimed that when he was running the business he kept more stock at home than at the market.)
Marianna was cross-examined at some length about the gates at the front of the laneway. She said that she had had to drag them open but they were not heavy and she did not find this difficult. She did not recall that the gate on the Jobes’ side was off its hinges. (Every other relevant witness did.) She said that the gates were equally easy to open. She recalled that her mother, unaided, could and at times did open both gates. It will be recalled that the plaintiff, in her own evidence, had strongly denied that she had had the capacity to do this. I do not accept Marianna’s evidence about the front gates.
Marianna was asked a series of questions about approaching witnesses to give evidence for her mother in this matter, and in particular about conversations with one “Spiro” who lived at 199 Albert Street (transcript pp 154-161). She answered very evasively and appeared to be rather rattled (see especially at transcript pp 159-161). On the other hand, because the defendants ultimately did not call “Spiro” as a witness, I take no notice of the alleged content of the alleged conversations involving him.
When it was put to her that the Jobes would say that they did not see anyone driving along the laneway at all after 1982, Marianna launched into an attack on the personalities and the behaviour of the Jobes. She said that she had a suspicion that the Jobes knew her family was using the laneway. This was “based on the fact that we continued to use it, even though we knew he wanted to build a fence”. The Jobes were “aggressive people”. She said that she suspected them of damaging the Thomopouloses’ cars (by, among other things, putting nails in the tyres) because the Thomopouloses were using the laneway. Her suspicion was “that they did that because we were using the driveway and they were not happy about it, and they tried to do whatever they could to try and scare us”. This evidence is difficult to reconcile with any suggestion that the plaintiff’s family’s use of the laneway was, or was perceived by them to be, non-contentious. Unsurprisingly, it was not repeated in her counsel’s later cross-examination of Mr and Mrs Jobe nor was it mentioned in senior counsel’s final submissions. As a result, the Jobes have had no opportunity to deal with it. I could not, and do not, use it to make any findings about the actual behaviour (as distinct from the perceived attitude) of the Jobes. However, the evidence did not improve the plaintiff’s prospects of showing that there had been open usage of the laneway with the acquiescence of the Jobes.
Marianna was tested further on her evidence as to the frequency of vehicular use of the laneway after 1982. Again she was in difficulties, partly because of the lapse of time and partly because she had not been in a position to make continuous observations throughout the relevant period. Pressed as to how often she had actually seen her father’s car on any part of the laneway, she became exasperated and her evidence was difficult to follow (see transcript pp 164-165). It was put to her that no car had ever gone right down to the garage after 1982. Her evidence was unclear on this point. She may have been saying that she could recall one such occasion during her high school days involving her father’s car and “maybe” one other involving her brother’s car at a later stage. (Her brother, in his evidence, had disclaimed ever doing this).
On re-examination, Marianna gave further evidence about her discussions with the Faulks concerning their building plans. Her evidence was, in effect, that, on her parents’ behalf, she was indicating opposition to any blocking of the laneway, on the basis that her family had been accustomed to using the laneway for vehicular access and was entitled to continue to do so. The Faulks were maintaining that the Thomopouloses had no such rights. Marianna had shown the Faulks a copy of the abovementioned solicitor’s letter detailing the outcome of the 1982 proceedings. The relevant conversation occurred on 10 or 11 February 2003. The dispute over the laneway was deferred for a time while the Faulks proceeded with their main renovations. The witness identified the correspondence which passed between the parties in this regard.
As indicated above, I was unimpressed by Marianna Thomopoulos’ evidence generally. Except as to matters that were common ground, or where she was making concessions, I would hesitate to accept any of it.
I turn now to the evidence called by the defendants.
Danny Jobe
Danny Jobe is a storeman, now living in Point Cook. He gave evidence in clear, down-to-earth and forthright terms.
Mr Jobe and his wife moved into 201 Albert Street, Port Melbourne in March 1982. He soon had concerns about the laneway area. There was a gate at the rear of his property but not at the rear of the Thomopouloses’ property. This made it look like the Thomopouloses owned the whole of the laneway area, and he did not like that. He had concerns about the Thomopouloses’ dog. It ran up and down the laneway, agitating the Jobes’ Rottweiler which was confined to the Jobes’ back yard. At this time (1982) Mr Jobe was a young man. He took his father along to see Mr Peter Thomopoulos about his concerns. He asked Mr Thomopoulos to install rear gates. Mr Thomopoulos agreed, but despite three or four reminders nothing happened for a couple of months. Mr Jobe went to see Mr Thomopoulos again. He said he had had enough, and if no gates went up he would put up a fence. The gates were then installed.
Later, in mid 1982, Mr Jobe was sitting in his lounge with his feet on the window sill facing the laneway. Mr Thomopoulos drove by. Mr Jobe could see how close the car came to the wall of his house. He decided that this was “not on”. The next day he went to see Mr Thomopoulos and told him not to drive the car down any more “on my property”. Prior to this, he had seen Mr Thomopoulos driving down the laneway “probably every day”. He would drive all the way down and park in the garage. When Mr Jobe confronted him, Mr Thomopoulos claimed that the laneway was “council land”. Mr Jobe said it was not. He later checked with the Port Melbourne Council. They confirmed that the land was split between the two private titles. So Mr Jobe went to McClusky’s, solicitors, and had a fencing notice issued. After the confrontation, Mr Jobe did not see Mr Thomopoulos drive down the laneway ever again.
The service of the fencing notice led to proceedings in the Magistrates’ Court. They were settled on the terms set out in the letter of 14 December 1982 from the Thomopouloses’ solicitor, Mr Rose, referred to above at paragraph 12. However Mr Jobe took no action to implement the terms. Asked why, he said:
“Because I achieved what I wanted and he never drove his car down there. All I wanted him to do was stop driving the car down there.”
Mr Jobe then described the renovations he had done in 1984. They took three or four months. Building materials were kept in the laneway during the renovations. At that stage it was not possible to drive down the laneway without moving all of the building materials. The renovation included the installation of a hot water service on the external wall nearly opposite the Thomopouloses’ rear gates. It further reduced the width of the laneway at this point. Some materials were left in the laneway after the completion of the renovations. Four or five hundred bricks were stacked there. They remained for six or twelve months. Between the house and the stack of bricks was some timber – about five or six planks, ten inches high. The timber stayed there until 2002.
Mr Jobe confirmed that the front gate on his side had come off its hinges in 1984 when the old verandah to which it was connected collapsed. He had tied the gate to the new verandah with plastic-covered electrical wiring and had put a shovel against the back of the gate to prop it up. This made the gate difficult to open. It was a very heavy gate. During the whole period of his occupation he had opened it only once or twice. He used the other gate (the one attached to the Thomopouloses’ house) instead.
In addition to the bricks and the timber, Mr Jobe used his side of the laneway for storing “old rubbish”. He put an old washing machine there in the late ‘80s or early ‘90s. It remained “probably, until I left”. At one stage he had about 10 railway sleepers in the laneway, but only for a few weeks. There was a bike leaning against the wall; and a mattock and a rake leaning against the front gate. In early 2000 he put an old fridge in the laneway. It was put next to the washing machine. It stayed until he left in 2002. Asked why he stored things there, he said:
“Because I didn’t want them in my backyard.”
Between 1982 and 1991 Mr Jobe worked for the Gas and Fuel Corporation in South Melbourne. His normal weekday working hours were 7 am to 4 pm. He walked to and from work. He would leave home at 6.30 am and get home at about 4.15 pm. Between 1991 and the time he left Albert Street in 2002, he worked for Linfox in Port Melbourne. The hours were 6 am to 2.30 pm. In these jobs he very rarely worked on weekends.
During the whole of the period after 1982 he did not see anyone drive down the laneway. Not even part of the way. He did not see anyone park there. If he had seen anyone doing such a thing he would have gone in and confronted them. He saw the Thomopouloses walking on the laneway about once a week. They kept to their own side. He did not see John Thomopoulos dragging bales down the laneway. He did see Peter and John using the pathway adjacent to 205 Albert Street to carry sheepskins and take in the rubbish bin. He may have seen this “twice a week” but “didn’t look to see what they were doing”. He did notice that the Thomopouloses’ cars would be parked anywhere in the nearby parts of Albert Street, including across the entrance to the laneway. He first got his own car in 2002. He sometimes parked it across the entrance. His wife had also sometimes parked her car there. Other cars would be parked there, too.
After deciding to sell, the Jobes cleared up the property, including the laneway. They sold to the Faulks, and moved out in late May 2002.
As to the period after 1982, it was “possible” that the Thomopouloses had used the laneway for car access when he was not at home, but it was not possible that they had done so while he was at home. At no time did he notice that any of the material in the laneway had been moved. The washing machine became heavy because it filled up with rainwater. It had been put out there in the late ‘80s or early ‘90s. The rainwater was not emptied from the machine until the clean up in 2002.
Cross-examined, Mr Jobe acknowledged that he could have used the garage which existed at the rear of his property prior to the renovations of 1984, but chose not to do so.
Mr Jobe denied that a concrete truck ever came down the drive during the 1984 renovations. The concrete was wheelbarrowed in from the street. Only one of the front gates was opened for the purpose. It was the one on the Thomopouloses’ side. The Thomopouloses did not object to this. The gate partly extended across the Jobes’ land. Other tradesmen used the laneway (on foot). The Thomopouloses allowed this.
In 1982 there was a discussion about privacy. Mr Thomopoulos told Mr Jobe that he wanted to use the laneway and that he believed he had a right to do so. The first discussion was not heated but by about the fourth one, when the rear gates had still not been installed, it got heated. The gates were then put in. It was contemplated at that time that Mr Thomopoulos would continue to have car access to his sheds. That was not in dispute at that stage. But, things changed some months prior to December 1982. The dispute went to court. At the court the lawyers did a deal. The deal was that Mr Thomopoulos could build a garage or shed at the front and Mr Jobe could put a fence up at the back and the Jobes would be allowed pedestrian access from the back through the garage or shed. However the deal required the approval of the Jobes’ mortgagee bank. They never sought it. Asked why not, he said:
“Because I achieved what I wanted. He never drove his car down there from 1982 on. That is all I ever wanted.”
Counsel took Mr Jobe to the other conditions set out in the letter from the Thomopouloses’ solicitors dated 14 December 1982. He agreed that not one was fulfilled. He was taken to his own solicitor’s letter of 22 December 1982. It asserted a belief that the Thomopouloses would be unable to obtain a permit for a garage at the front. It proposed instead that they be allowed to park at the front up to a certain point in return for agreeing to the construction of a fence from that point through to the back. Mr Jobe said that he had difficulty remembering this proposal. It was put to Mr Jobe that he did not really understand what was going on between the lawyers and that there was never any true or final agreement. He acknowledged that he was “happy to get out of there [the Magistrates’ Court]”. Indeed he repeated that his whole objection had been to stop the car and he had stopped the car.
Counsel put to Mr Jobe various factual propositions derived from the evidence given by the plaintiff and her witnesses as to the usage of the laneway for car access after 1982, and he strongly denied them all. He also denied seeing any bales of sheepskins being dragged along the laneway. He said that although the Thomopouloses sometimes opened the rear gates enough to walk through, he did not see the gates fully open (as they would need to be to permit car access) at any time after 1982. (He himself went up the laneway on foot “a lot”.)
Mr Jobe denied that the front gate on his side needed to be opened from time to time to allow floodwater out. He said that the gate had only been opened about once during the twenty year period of his occupation.
Mr Jobe agreed that he did not speak to the Thomopouloses after 1982. It was put to him that after the court case and the unimplemented proposals of December 1982 “matters returned to exactly what they were like before 1982”. He flatly denied this. The difference was, he said, that he had stopped Mr Thomopoulos driving down the laneway, at least while he was at home.
Mr Jobe denied that John Thomopoulos had moved the washing machine from time to time. He was “absolutely certain” that it remained in the same spot for ten years. Asked by the Court why he left it there he said:
“I just left it there because it hurt nobody … .”
In answer to cross-examining counsel he went on to explain that he just used the laneway as a storage area. He did not expressly say at any stage that he had left items in the laneway for the purpose of preventing or discouraging car access.
He acknowledged that the cross-over at the front of the laneway had been present when he arrived in 1982. He denied that Mrs Thomopoulos had ever taken wheelie bins, large or small, along the laneway. She had always used the other pathway.
In answer to final questions from the Bench and to some further questions by counsel, Mr Jobe provided more detail about the use of the shovel to prop up the gate. He said that it was there from 1984 until 2002.
Mr Jobe said that he had told the Thomopouloses at the time that he objected to them driving down the laneway “because it was mine. It was my property”.
He also gave more detail about the incident when Peter Thomopoulos had driven past while he had his feet on the window sill. The window had been open. The car had come too close to the house. He just did not like them driving so close to his house. He was concerned they might touch it.
Mr Jobe confirmed that while the washing machine was in the laneway it was physically impossible to drive past it.
Mr Jobe was an impressive witness whose credibility was not damaged at all by cross-examination. Nothing was put to him to suggest that he had something to gain from success on the part of the defendants in this litigation, or that otherwise he had a motive or reason to give false evidence.
William Duncan
William Duncan is a public relations consultant. He and his wife Bridie lived at 205 Albert Street between April 1991 and November 2003. He was away at work during orthodox working hours and, in addition, for an hour or two more than most people. He was at home 90 percent of the time at weekends. The Duncans had a young family and did not travel much. Their house was set a little higher than the Thomopouloses. It had a glazed light court that was their major passageway through the middle section of the house. From there and from other spots they could see any pedestrian movement along the Thomopouloses’ side path adjacent to 205 Albert Street.
He quite regularly saw the Thomopouloses using that side path. All four members of the family used it. It was the “access path to their house”. They used it sometimes in the morning, sometimes in the early evening and invariably on the weekends. They used it to carry woollen products in and out. He saw this on a regular basis, “at least twice a week, and generally more”, and occasionally on weekends. He saw them use the path for rubbish bins occasionally.
Never while he lived at 205 Albert Street did he see the gates between 203 and 201 Albert Street open or being opened. He had not known the purpose of the area behind the gates, nor that it led to the rear of the Thomopouloses’ property. Never did he see anyone driving in. There was competition for parking spaces in Albert Street. Right from the beginning (April 1991) people would park immediately in front of the gates. Generally cars were not parked facing inwards towards the gates, although he may have seen a car being washed there on a weekend. The space was used for parallel parking on the street. He did not ever see anyone walking down the laneway.
Cross-examined, Mr Duncan repeated that he had never seen the laneway used as a driveway. There was no manifestation of it being actually used as a driveway or being able to be used as a driveway. At one point, the households at 201, 203 and 205 Albert Street had two cars each. He did not ever see bales of wool arriving in the street.
In answer to questions from the Bench, he said that as far as he was aware no-one ever received a parking ticket for parking in front of the gates, nor was there any apprehension that one might get a ticket, because it was not a functioning driveway.
Again, Mr Duncan was an impressive witness and his credibility was untouched by cross-examination.
Bridie Duncan
Bridie Duncan is a photographer working from home. She lived at 205 Albert Street with her husband William Duncan from April 1991 until November 2003.
While living there she saw the Thomopouloses walking down the side path next to her house. They used that path “very regularly”. It appeared to be the main access to their backyard. They used it “many times a week”. They walked along it with sheepskins. This occurred at any time of the day or night and throughout the period the Duncans were living there.
She thinks she saw the gates between 203 and 201 Albert Street partially open once, but not fully open. She never saw a car drive down the laneway. She did not really think one could drive a car down. She never saw a car parked in there. She did see cars parked parallel to the kerb in the street in front of the gates. The space was used for general parking in the street. She never saw anyone walking along or otherwise using the laneway.
Cross-examined, Mrs Duncan said she had three small children at the time and so spent the bulk of her time at home. She agreed that the Thomopouloses basically kept to themselves and that she did not form any friendship or acquaintanceship with them.
The occasion when the gates were partially open was early in the piece. She could not remember which gate was open. She had had only the “faintest glimpse”. She noticed this because she had not seen the gates open before. She did not look down the laneway. She did not recall any bales of sheepskins.
In answering questions from the Bench and further questions from counsel, the witness gave more detail as to her opportunities for observation of the gates. She estimated that when the children were little she might have walked past the gates ten times per week, always in daylight hours. In order to drive away from home she had to pass the Thomopouloses’ house because Albert Street had become a one-way street within months after the Duncans arrived.
Mrs Duncan struck me as an honest witness doing her best to be accurate. Her credibility was undiminished by cross-examination.
Billie Lee Jobe
Billie Lee Jobe is a shop assistant. She lived with her husband, Danny Jobe, at 201 Albert Street from March 1982 until May 2002.
In about late August 1982 she and her husband sent the Thomopouloses a fencing notice. It was ignored, so they went to a solicitor and began proceedings. There were settlement discussions at court. One option was a garage for the Thomopouloses at the front and a fence at the back. The Jobes had understood from the local council that a garage would not be allowed anyway, and they wanted a fence; so they agreed to this option. No action was taken afterwards because the Thomopouloses stopped taking their car down the laneway. They did not drive down there after the Jobes went to court.
The Jobes renovated in 1984. They moved out for about ten weeks. They visited the site regularly. Building materials were kept in the laneway during the renovations. Afterwards, several rows of bricks were left behind, near the front window. Some timber was left for a while “when we did our backyard”. An old washing machine was left. It was probably further back than the bricks. The Jobes’ rubbish bin was kept just inside the front gate. They used the laneway for taking out the rubbish bin and for taking the dog out. From time to time tradesmen whom they had engaged, such as painters and air-conditioning installers, used the laneway for access (on foot). A lounge suite was delivered that way.
The front gate on the Jobes’ side came off its hinges during the renovations of 1984 and Danny tied it up. It stayed that way until they left in 2002. She thought that Danny had put a shovel up against it “for a while” so that the gate would not lean over.
Mrs Jobe herself never drove down the laneway. It was not safe. There was not enough room. However, when she and her husband first moved in, the Thomopouloses were driving down regularly, more or less daily. But she never saw any of them drive down after the court proceedings. Nor did she ever see any car parked there. She saw no sign that any of the materials left in the laneway had been moved out. She saw the Thomopouloses walking along the laneway, but only very rarely - about a couple of times a year.
Mrs Jobe was working during the relevant period. Her hours were 9 am to 6 pm. She normally left home at 8.50 am and got home at 6.30 pm. She did not work on weekends.
The Thomopouloses used the side path next to 205 Albert Street to take their rubbish out and to carry in sheepskins from their car.
Mrs Jobe drove a car. She tried to park immediately outside her house but parking was “extremely bad” and she regularly parked across the entrance to the laneway. The Thomopouloses parked there too. She did not speak to the Thomopouloses after the dispute of 1982 except to say “hello” to the son, John.
Mrs Jobe neither saw nor heard any cars in the laneway after 1982. She said:
“We would have heard the gate go. The whole house would shake as they were trying to move it.”
The front gate nearest the Jobes was dangerous. Danny used to open it, but she herself tried it only once. It was heavy. She was worried it would fall on her fingers.
The timber she had mentioned had been used in the back yard. They were railway sleepers. The washing machine would only have been in the laneway for a couple of months, until the clean-up. The bricks were there for six months or so. There were different things at different times but she did not think anything stayed there for years on end. It is quite possible that there were times when there was nothing in the laneway.
Cross-examined, Mrs Jobe confirmed that no trucks were brought down the laneway during their renovations. The bricks left over were loose, not wrapped. The washing machine was not put out during the 1984 renovations but rather about 10 years later, or at least closer to 1994 than to the period of the renovations. She was not sure how long it was there. The period was less than 10 years. She did not notice that it had been moved.
Mrs Jobe acknowledged that her husband had opened at least one of the gates weekly for 20 years to take the rubbish out.
Counsel put to Mrs Jobe various factual propositions said to be derived from parts of the evidence given by the plaintiff’s witnesses relating to usage of the laneway. She strongly refuted those propositions. For example, it was put to her that after 1982 Mr Thomopoulos had driven down the laneway in his station wagon “regularly initially, certainly until 1990”. She responded:
“I doubt that very much … I was home until ten to nine. If he worked at the market I would have heard the gates. I would have heard the car in that ten years, before I went to work … And I didn’t.”
To my mind, this evidence had the clear ring of truth about it.
Counsel then returned to the dispute of 1982. By reference to the documents, he endeavoured to obtain a concession that there was never a definite agreement for a fence between the two properties. In response, the witness maintained that as a result of the proceedings the Thomopouloses no longer drove their car down the laneway, and that that had been one of the Jobes’ main concerns.
The witness continued to maintain, in a convincing manner, that she had not seen any sign of the laneway being used, after 1982, in the ways claimed by the Thomopouloses. She had seen the rear gates opened slightly to allow people through on foot a couple of times, but had never seen those gates fully opened and had never seen a car go through. She never saw a car parked in the laneway.
The witness did concede that it would be a “fiction” to say that the laneway was constantly blocked by obstructions (such as building materials and the washing machine).
In re-examination, Mrs Jobe said that she herself rarely walked along the laneway. It was dangerous and she was scared. She would go through the house.
In answer to questions from the Bench, Mrs Jobe acknowledged that, as the legal correspondence of 1982 tended to indicate, the Jobes were more concerned, at least initially, about cars driving all the way down the laneway as distinct from parking in the front part of it.
I thought that Mrs Jobe was an honest witness. Her evidence was not shaken at all by cross-examination. Although there were some inconsistencies (to which I will return) between Mrs Jobes’ evidence and her husband’s evidence as to the obstructions, to my mind they did not diminish either her general credibility or his.
Emma Faulks
Emma Faulks is the second defendant. She and her husband Matthew run an indoor plant hire business. They have lived at 201 Albert Street since June 2002. Believing that about two thirds of the laneway was on their title, they put approximately six large potted plants along the boundary shortly after they moved in. They also used their side of the laneway for storage. The plants were taken away temporarily in September 2002 while some renovations were done to the front of the house. In February 2003 the Faulks commenced their major renovations. At no time has Mrs Faulks seen anyone driving in the laneway. Parking is difficult in the street. Both the Faulks and the Thomopouloses have parked across the entrance to the laneway frequently.
Cross-examined, Mrs Faulks gave evidence about conversations and meetings with the Thomopouloses, especially relating to the Faulks’ proposed renovations and building works. She said initially that the first indication to her from the Thomopouloses that they had a claim in relation to the laneway came when Marianna Thomopoulos and her husband came over to the Faulks’ house sometime prior to February 2003. She was uncertain of the date. In the end she accepted that it was probably in February 2003. She denied that there was an earlier, additional meeting at which the matter was raised.
The old gates at the front of the laneway were able to be opened, but not by the witness. They were “very, very difficult”. Her husband could open them. The gate on the Faulks’ side was tied up in a makeshift way. However during the renovations of 2002 tradesmen opened that gate to transport building materials. Mrs Faulks did not ever see John Thomopoulos moving bales of sheepskins down the laneway.
On re-examination, Mrs Faulks recalled an occasion within about three weeks of their moving in when Marianna Thomopoulos and her husband came to their house while they were painting. However she denied that there was any mention of the right to use the laneway on that occasion.
In answer to a question from the Bench, she said that she and her husband had had no ongoing connection with the Jobes since buying the house.
Apart from appearing to be a little nervous, Mrs Faulks was a generally impressive witness who appeared to be doing her best to be accurate.
Matthew Faulks
Matthew Faulks is the first defendant. He has qualifications in law but does not practise. He and his wife run a landscaping or plant hire business. They are the joint proprietors of 201 Albert Street.
In purchasing 201 Albert Street they were influenced in part by the inclusion of the land at the side (in the laneway).
The front gates were solid, regular, timber gates but the gate on their side was not properly attached. They considered it dangerous to their 18 month old child and replaced it not long after they moved in.
The main works for their major renovations were done between February and May 2003. There was follow up work for the next 12 months. The local council had required them to install a stormwater drain to take run-off from the house. They did so. As shown by photographs in the Court Book, the drainpipe ran down most of the length of the laneway. It was installed by about May 2003. (It would have obstructed any vehicular traffic thereafter).
Shortly after arriving the Faulks put pot plants in the laneway. They kept their rubbish bins there, and sometimes other materials for the house.
Mr Faulks estimated having seen the Thomopouloses walking in the laneway about six times in total. He had never seen a car in the laneway. He had seen the Thomopouloses using the path on the other side, including to carry goods in and out, but only occasionally.
Mr Faulks gave details about communications with the Thomopouloses and the local council about their building plans. They wanted to build decking in the laneway and a fence on the boundary. The Thomopouloses opposed this. The dispute was deferred for a time while other works were done. Ultimately, in January/February 2004, the decking was erected (above the drainpipe) and the fence was built.
Cross-examined, Mr Faulks denied that, at the time of inspecting and purchasing the house, the cross-over at the front of the laneway suggested to him that the laneway might have been used for vehicular access. There was a car parked across it and the real estate agent had pointed out where the title boundaries were. Nor did the gates at the rear of 203 Albert Street raise such a suggestion. They were rusted across the top. Although he is a Victorian-trained lawyer, he had not realised that there could be an unregistered easement over Torrens title land.
Mr Faulks agreed that Marianna and her husband visited them in June or July 2002 while they were either painting or doing some other renovation work on the house. He did not recall Marianna referring to the laneway on this occasion. The conversation did not make him aware that the Thomopouloses were claiming they had a right to use it. The plants were put out very shortly after the Faulks moved in.
By January 2003, through legal correspondence, the Faulks had become aware that the Thomopouloses were effectively claiming an easement over the laneway. There were also discussions about this in February 2003. Mr Faulks was a little defensive about these discussions, but in the end conceded that Marianna and her husband had claimed that in the past her family had driven on the laneway for the purposes of the sheepskin business. He acknowledged that a copy of the solicitor’s letter of 14 December 1982 had been produced by Marianna and discussed.
At about this time the Thomopouloses had lodged with the Council wide ranging objections to the Faulks’ main renovation plans, without prior discussion. The Faulks considered the objections unreasonable. Mrs Faulks was seven months’ pregnant at this stage. It was agreed that the objections would be withdrawn on the basis that the laneway works would not proceed prior to a further proposed meeting which was to be held in July 2003 and to be convened by the Faulks. However the Faulks did not convene any such meeting. Rather, they simply gave written notice on 30 December 2003 of their intention to begin the works in January 2004. The laneway had not been used in the intervening period for the purposes claimed by the Thomopouloses. Relations between the parties were not good. So the Faulks just went ahead.
Apart from some minor defensiveness as indicated above, I thought that Mr Faulks was an impressive witness.
Findings
In his closing address, senior counsel for the plaintiff said:
“Your Honour, if your Honour accepts the evidence of the Jobes, our case is lost, because we cannot establish on any basis the 20 year usage either commencing in 1974 or commencing in 1982. Your Honour would have to come to that finding.”[4]
Senior counsel explained this by saying that it was highly unlikely that if even part of the usage described by the Thomopouloses had actually occurred, it would not have been seen by the Jobes on at least one occasion[5]; and that it was inconceivable that, if the usage were fully as much as the Thomopouloses claimed, the Jobes would not have known about it.[6]
[4]Transcript p 368.
[5]Ibid.
[6]Transcript pp 388-389.
I would interpret senior counsel’s submission as amounting to or involving a concession that if any vehicular usage of the laneway by the Thomopouloses after 1982 was of such a limited nature and extent that it was never detected by the Jobes, then it did not constitute sufficient usage for the purposes of the application of the doctrine of lost modern grant in this case, in that it did not constitute usage “of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right, and of a right of the measure of the right claimed”.[7] I think that such a concession would be correct. In any event, I agree that if I accept the relevant evidence of the Jobes, the plaintiff’s claim must fail.[8]
[7]White v Taylor (No. 2) [1969] 1 Ch 160 at 192 per Buckley J, quoted in Bradbrook and Neave, Easements and Restrictive Covenants in Australia, 2nd ed 2000 at [5.15].
[8]Indeed, since the burden of proof on the issue of whether any or any sufficient relevant acts occurred is on the plaintiff, the plaintiff would fail unless I were positively satisfied that sufficient relevant acts occurred: see Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415 at [124]; cf Klapsinos v Iconomidis, unreported, Supreme Court of Victoria, Court of Appeal, 5 September 1995 at p 4-5 per Hayne JA; Bradbrook and Neave, op cit at [5.25].
I do accept the evidence of the Jobes that they did not detect any vehicular usage of the laneway after 1982. Therefore, in accordance with senior counsel’s concession, I find that there was no sufficient usage of the laneway to create the easement sought. Hence the plaintiff must fail on this account alone.
There are four main reasons why I accept the evidence of the Jobes about usage of the laneway. First, in numerous respects their evidence fits in better with the uncontested facts than does the evidence given on behalf of the plaintiff. Second, I was impressed with the Jobes as witnesses because of the internal consistency and inherent plausibility of their evidence and because of the manner in which they gave their evidence, whereas I was significantly less impressed with the Thomopouloses as witnesses in these respects. Third, the Jobes are independent of the parties and had nothing to gain by their evidence. Nothing was put to them against their credit. On the other hand, of course, the Thomopouloses have much to gain from success in this case. Fourth, the evidence of the Jobes gained significant support from that of the Duncans, whereas the evidence of the Thomopouloses gained little if any support from that of Mr Bicknell. These last two reasons need no elaboration, but I will elaborate on the others.
I begin with the first reason. In his closing address, counsel for the defendants gave four illustrations of the proposition that the Jobes’ evidence as to usage of the laneway fits in better with the uncontested facts. I think that the illustrations made the point well. They were to the following effect. First, given the firm attitudes expressed and the legal steps taken by the Jobes in 1982 (and, it might be added, given Marianna Thomopoulos’s perception of the Jobes as “aggressive” people), it is highly unlikely that Mr Jobe would not have openly confronted the Thomopouloses had he become aware of a single instance of driving along the laneway, let alone repeated instances, after 1982. (Indeed, Mr Jobe said in evidence he would have done just that in such circumstances.) There was no such confrontation. Second, if the Thomopouloses truly believed that they were entitled to drive down the laneway and were prepared to do so even when the Jobes were at home (and despite the known opposition of the Jobes), then they would also have demanded, or at least requested, that the defective front gate be fixed and that the Jobes remove the various obstacles that were (admittedly) left in the laneway for significant periods of time. Indeed, they might understandably have objected to the hot water service also. They did not do any of these things. (I do not think that these omissions can sensibly be attributed to a desire to “keep the neighbourhood peace”, because the very act of driving down the laneway would have risked disturbing that peace.) Third, if the Thomopouloses had truly adopted the belief and the attitude just mentioned, they would have taken steps to prevent the Jobes and others from parking across the entrance to the laneway. They did not. Fourth, the admitted time and trouble involved in clearing a path into the laneway was disproportionate to any gain from doing so, especially given the effective concessions by both John and Marianna Thomopoulos that it was rarely, if ever, that a car was taken all the way down to the garage after 1982.
As to the second reason – namely a preference for the Jobes over the Thomopouloses as witnesses – I would refer to my comments above on the various individual witnesses. As indicated there, I found the evidence of both Irene and Marianna Thomopoulos vague, overstated and generally unconvincing. Further, it was not shown that either was in a particularly good position to observe and note Peter Thomopoulos’s driving from time to time. John Thomopoulos was a more impressive witness, but still his evidence was not as convincing as that of the Jobes. He was only ten years old in 1982 and was only just out of his teenage years when his father’s car was written off in 1992 or 1993. There is no reason to think that he (any more than his sister or his mother) would have taken particular note of the laneway or of where his father drove and parked his car in those days. He was reluctant to concede that the timber had been in the laneway since 1984, but it seems clear from the fact that it was left over from the 1984 building works that it was. Nor was any real foundation laid as to the opportunities that John had to observe his father’s use of the laneway in later years. In any event, he could not recall a single instance of his father driving all the way down to the garage after 1982. Further, in relation to the time when John himself was running the business, he maintained the contention, which I regard as extraordinary, that when he had a lot of stock and was feeling tired he found it easier to go through all the rigmarole involved in clearing a path into the laneway (including shifting the washing machine), and then reversing all of these steps, rather than simply park in the street and take the goods in by hand. In my view, this contention casts doubt on the acceptability of all the evidence he gave that tended to support his mother’s case. As to the many inconsistencies between the evidence of Irene, John and Marianna Thomopoulos which are identified in the individual comments above, the plaintiff’s counsel submitted that the lack of harmony between them actually buttressed the respective witnesses’ credit, by demonstrating that they had not put their heads together to come up with an artificially consistent story. However that may be, most of the inconsistencies only emerged in cross-examination. They went to matters of importance, and I think that they seriously weakened the acceptability of the evidence of the respective witnesses.
By contrast, the Jobes were both impressive witnesses. They were fully consistent with each other in relation to the non-observation of any sign that cars had used the laneway after 1982. It is true that they differed between themselves as to the types of items that were left in the laneway and the periods for which they were there. But I do not regard those differences as significant for present purposes. They are probably to be explained by the fact, deposed to by Billie-Lee Jobe, that she rarely went into the laneway because she found it dangerous and scary. On the other hand Danny Jobe said, and I accept, that he was in the laneway frequently. It was Danny, not his wife, who left the various items in the laneway and who ultimately removed them. I accept his evidence as to the obstacles, just as I accept his evidence that he was unaware of any vehicular use of the laneway after 1982. It is true that Danny said that he left for work each weekday morning around 6 am or 6.30 am, which would be before the time at which, according to John Thomopoulos, Peter Thomopoulos would drive out of the garage to go to work at the markets (about 7.00 or 7.30 am). However Billie-Lee Jobe said that she was still at home each weekday morning until 8.50 am, and I thought that she was entirely convincing when she said that if a car had been driven along the laneway before that time she would have heard it and would have detected the impact of the opening of the gates. Moreover, both of the Jobes were usually at home at weekends and in the evenings.
Overall, I feel confident in accepting the relevant evidence of the Jobes. I found it to be clearly preferable to the corresponding evidence of the Thomopouloses.
To say that I preferred the Jobes as witnesses and to accept their evidence that they were unaware of any vehicular usage of the laneway after 1982 does not require me to go so far as to find that the Thomopouloses or any of them deliberately gave false evidence. The Thomopouloses were required to cast their minds back over some 35 years and to try to recollect the nature and frequency of things done, in the main, not by themselves but by the late Peter Thomopoulos. No relevant written records were kept. There was no particular reason for the Thomopouloses to make mental notes throughout the period in question. Nor is it clear to what extent each witness was really in a position to observe accurately what occurred from time to time. The risk of inadvertent but inaccurate reconstruction was heightened because there was a period of some eight years from 1974 (or 11 years from 1971) during which the requisite kind of usage of the laneway did indeed occur. It would not be too difficult to innocently transpose memories of that earlier period into a later period.
Indeed my acceptance that the Jobes did not detect any vehicular usage of the laneway after 1982 does not mean that I am completely confident that there was never any vehicular usage of it at all after 1982. While I am not positively satisfied that there was any usage, I would not rule out the possibility that some usage did occur, albeit of a minor nature and degree. John Thomopoulos said that his use of the laneway occurred only in the early afternoon, and only on weekdays. At these times Mr and Mrs Jobe were usually away at work, and their absence would probably have been known to the Thomopouloses. So, as the Jobes themselves conceded, it is possible that some driving in the laneway occurred without them becoming aware of it. On the other hand, I accept the evidence of Mr Jobe that he walked in the laneway frequently and never saw any sign that any of the obstacles there had been moved; and I note again the various disincentives and difficulties that would have discouraged driving in the laneway. I am quite satisfied that no car was ever driven all the way to the end of the laneway and into the garage after 1982.
Whether or not I am correct in my factual finding that there was no sufficient usage of the laneway by the Thomopouloses after 1982, I am of the opinion that to the extent that the Thomopouloses drove into or along the laneway after 1982 they did not do so openly or “as of right”. Rather, if they did it at all, they did it “clam”, ie secretly, in such a way and at such times as were calculated to avoid detection by the Jobes. I think that this is borne out by the evidence of Irene Thomopoulos referred to above to the effect that the Thomopouloses “avoided” the Jobes when using the driveway; by the evidence of John Thomopoulos that he had some concern in his mind when he used the laneway because he knew the Jobes did not want them to use it; and by the evidence of Marianna Thomopoulos to the effect that the Jobes were “unhappy” about their using the driveway. Significantly, the Thomopouloses did not claim that their driving in the laneway after 1982 was ever, to their own observation or knowledge, actually seen or remarked on by the Jobes.
Further, any such usage would also have been “vi”, ie by force, in that the Thomopouloses would have been required to move the various obstacles in the laneway. Counsel for the plaintiff emphasised that Danny Jobe did not say in his evidence that he had left the items in the laneway for the purpose of blocking vehicular access, but rather said that he had simply used the laneway as a storage area. However this is explained by (and is fully consistent with) Danny Jobe’s belief that since 1982 the Thomopouloses had given up any claim or any attempt to use the laneway for vehicular access. As the Thomopouloses knew, the Jobes remained opposed to any driving in the laneway. Hence, in my opinion, any driving that involved moving the obstacles would have been “vi”.[9]
[9]Compare Newnham v Williams (1987) 56 P & CR 8 at 19.
Indeed any driving in the laneway at all would have been contentious, not “as of right”. It would not have been done with the acquiescence of the Jobes, whereas, as Hedigan J said in Sunshine Retail Investments Pty Ltd v Wulff, acquiescence “lies at the heart of prescription”.[10] Indeed, the circumstances might well attract the description of “a state of perpetual warfare between the parties”, a situation in which there can be no user as of right.[11]
[10](1999) VSC 415 at [117].
[11]Eaton v Swansea Waterworks Co (1851) 17 QB 267 at 273, cited in Bradbrook and Neave, op cit at [5.21]; see also Newnham v Williams (1987) 56 P & CR 8 at 17.
I reject the plaintiff’s submission that the Thomopouloses were merely trying to “keep the neighbourhood peace” by using the laneway less often and that they continued to use the driveway “as often as they chose”.[12] The very source of the neighbourhood friction was the question of the rights of the parties in relation to the laneway. Clearly, in the absence of opposition by the Jobes, the Thomopouloses would have chosen to use the laneway to a much greater extent than the extent to which, even on their own evidence at its highest, they did use it after 1982.[13] Further, they would not have sought to avoid the Jobes when they used it.
[12]Compare Carr v Foster (1842) 3 QB 581, 114 ER 629 at 632; Gangemi v Watson (1994) 11 WAR 505 at 511.
[13]Compare the following observation in Sara, Boundaries and Easements, 2nd ed, Sweet and Maxwell, p 282: “If there is a drive and the owner does not have a car then it will be sufficient to show that the drive is used by visitors and deliverymen. If, on the other hand, he does have a car but does not use the drive, this may tend to suggest that there is no user as of right.”
In my opinion, the events of 1982 did constitute an “interruption” to the use of the laneway. The parties did not return to the status quo after the abortive settlement of the court proceedings. The situation prevailing after 1982 was hardly the status quo when, on any view, the frequency of use of the laneway was much reduced and (as I have found) the Thomopouloses never again drove all the way through to the garage.
In any event, I very much doubt that a right of way consisting of a right to reach a particular property by car can be created by driving cars only part of the way across the subject land. This would hardly be “usage of such a character … as to indicate an assertion by the claimant of a continuous right, and of a right of the measure claimed”.[14] And the plaintiff does not suggest, in the alternative or otherwise, that she is entitled to some other kind of easement, such as a right merely to enter and stop or park in the laneway. Indeed, she disavows any claim to be able to park in the laneway even as part of the larger easement claimed.
[14]See footnote 7 above. See also Gale on Easements, 17th ed, at 4-13: “It would not be reasonable to presume a grant when the evidence of user does not support in extent the right claimed”, citing Alfred F Beckett v Lyons [1967] Ch 449.
In the end, given my conclusions as to the Jobes’ evidence, it does not matter whether Marianna Thomopoulos did or did not raise the topic of the laneway with the Faulks on the occasion when they were painting the house in 2002. Nor do I need to consider what consequences may have flowed from a finding one way or the other on that issue. For completeness, however, I record that I am not satisfied that Marianna did raise the topic of the laneway on that occasion, nor until the admitted communications of January/February 2003.
At the hearing there was some discussion of the authorities and principles relating to the role of “constructive knowledge” on the part of the owner of the servient tenement, and as to the burden of proof in connection with actual and constructive knowledge (or want of knowledge).[15] However, on my findings of fact, I have no need to determine any such issues in this case. I have found positively that the Jobes had no actual knowledge of any vehicular usage of the laneway by the Thomopouloses and it follows (in accordance with senior counsel’s concession) that if there was any vehicular usage at all it was insufficient to raise any presumption of knowledge on the part of the Jobes or to have required the Jobes to take any steps to protect their interest in the subject land.
[15]See, eg, Bradbrook and Neave, op cit, at [5.34] and Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415 at [122]-[124].
Conclusion
For these reasons there will be judgment for the defendants. If they so desire, I will hear the parties on the question of costs, but otherwise the plaintiff will be ordered to pay the defendants’ costs of the proceeding.
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